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No. 98-4658
JEVAN ANDERSON,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of North Carolina, at New Bern.
Terrence W. Boyle, Chief District Judge.
(CR-97-34-BO-1)
Argued: April 6, 2000
Decided: May 15, 2000
Before WILKINSON, Chief Judge, MOTZ, Circuit Judge,
and HAMILTON, Senior Circuit Judge.
_________________________________________________________________
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: Douglas Everette Kingsbery, THARRINGTON SMITH,
L.L.P., Raleigh, North Carolina, for Appellant. John Howarth Bennett, Assistant United States Attorney, Raleigh, North Carolina, for
Appellee. ON BRIEF: F. Hill Allen, THARRINGTON SMITH,
L.L.P., Raleigh, North Carolina, for Appellant. Janice McKenzie
Cole, United States Attorney, Anne M. Hayes, Assistant United States
Attorney, Raleigh, North Carolina, for Appellee.
where Anderson resided. While the DEA agents found no drugs, they
did find a set of electronic scales. Kolbinsky testified that such
devices are commonly used for weighing drugs. In Anderson's bedroom, the DEA discovered $11,825 in cash. Some of the currency was
bundled in $1000 amounts. Kolbinsky testified that such bundling is
very common in the narcotics trade. Anderson offered no evidence
and filed a motion to dismiss. The district court denied his motion.
The jury then found Anderson guilty on the single conspiracy count.
On January 13, 1999, the district court held Anderson's sentencing
hearing. The court found that Anderson was responsible for over
1,176 grams of crack cocaine plus a specified amount of powder
cocaine which yielded a base offense level of 36. When combined
with Anderson's criminal history category of IV, a guidelines sentencing range of 262 to 327 months resulted.
The court then addressed the government's request to enhance
Anderson's sentence to a mandatory term of life imprisonment pursuant to 21 U.S.C. 841(b)(1)(A). The court concluded that Anderson
had been convicted of two prior drug felonies, as required by
841(b)(1)(A). As a result, the court sentenced Anderson to life in
prison. Anderson now appeals both his conviction and sentencing. We
address his claims in turn.
II.
Anderson argues that the evidence submitted by the government at
trial was insufficient to support his conviction under 846. Anderson
specifically claims that the government did not prove that he was conspiring with others in furtherance of his drug trade. See United States
v. Burgos, 94 F.3d 849, 858 (4th Cir. 1996) (en banc) ("[I]n addition
to proving the existence of a conspiracy beyond a reasonable doubt,
the Government must also prove a defendant's connection to the conspiracy beyond a reasonable doubt.").
We disagree. "When assessing the sufficiency of the evidence of
a criminal conviction on direct review, `[t]he verdict of [the] jury
must be sustained if there is substantial evidence, taking the view
most favorable to the Government, to support it.'" United States v.
Mitchell, No. 99-4008, 2000 WL 309298, at *5 (4th Cir. Mar. 27,
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Cir. 1996), and evidence introduced at trial can be used to satisfy this
burden, see United States v. Williams, 986 F.2d 86, 90-91 (4th Cir.
1993). The government introduced evidence at trial showing that
Jackson, Caracter, and Ramos all sold substantial amounts of crack
cocaine to Anderson -- an amount totaling over 1,162 grams. The
government's evidence also showed that Jackson introduced Anderson to both Caracter and Ramos. Based on this evidence, we cannot
conclude that the district court clearly erred by concluding that these
amounts of drugs were connected to a single conspiracy.
Anderson also contends that the district court clearly erred in attributing to him the 1,000 grams of the so-called "fish scale" cocaine.
The error, if any, is clearly harmless. As Anderson concedes, the district court did not count the "fish scale" cocaine as crack cocaine, but
rather as powder cocaine. Thus, the district court's crack cocaine total
of 1,176.525 grams is unaffected. This quantity of crack cocaine is
more than enough for base offense level 36 to apply to Anderson. See
U.S. Sentencing Guidelines Manual 2D1.1(c)(2)(1998) (Level 36
applies to offenses involving at least 500 grams but less than 1,500
grams of crack cocaine.).
B.
Anderson next contends that the district court erred by applying the
21 U.S.C. 841(b)(1)(A) life imprisonment sentencing enhancement
to him. Section 841(b)(1)(A) provides, "If any person commits a violation of this subparagraph or of section 849, 859, 860, or 861 of this
title after two or more prior convictions for a felony drug offense have
become final, such person shall be sentenced to a mandatory term of
life imprisonment without release . . . ."
Anderson initially contends that because 841(b)(1)(A) does not
explicitly refer to 846, this enhancement cannot apply to his 846
conviction. While Anderson is correct in noting that 841(b)(1)(A)
does not explicitly list 846, 846 itself states, "Any person who
attempts or conspires to commit any offense defined in this subchapter shall be subject to the same penalties as those prescribed for the
offense, the commission of which was the object of the attempt or
conspiracy." (emphasis added). In this case, the object of Anderson's
conspiracy was violating 841, which makes it illegal to distribute
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